Manusmrti #7

MANUSMRTI

CHAPTER NINE

THE STATE AND SOCIAL LAWS

On Gambling and Challenges (9-220 to 228)

Manusmrti was drafted during an epoch when the society was grappling with the consequences of unrestrained greed that mocked at honest work and simplicity of life. It would not be wrong to identify this epoch as the decades that preceded and followed the famous battle of Kurukshetra. The rules pertaining to marriage and inheritance of property finalized by the editors of Manusmrti were not observed by many sections of the then elite and had not yet been widely propagated among the commonalty. But their rationality could not be questioned even then. The most radical departure from the norm was polyandry that was practised in Panchala in the Ganga-Yamuna Doab and even in Kekaya in Punjab.

The dayada system of fraternal oligarchy was popular among the Kurus of this region. But the theory of inheritance advocated by this system was felt to be cumbersome and monogamy came to be advocated as the most desirable norm and so too small nuclear families. The elite and the scum both indulged in gambling and betting as a means of acquisition of property.This deviance was taken note of by the editors of Manusmrti who sought to curb it. It may be noted here that the two Kuru factions who fought out the battle of Kurukshetra had earlier tried to solve their dispute through dice but failed. Some presented dice and duel as better alternatives to open war. But sane men decried all the three.

The editors of Manusmrti would advise the king to banish from the rural hinterland (rashtram) both resort to gambling (dyutam, dice) and challenge (samavhyam). The tendency of the king to resort to these vices (dosham) led to the decline (kshita) of the agro-pastoral commonalty (prthvi), Manusmrti warned. (221) Both challenging (with bet) and gambling amounted to open theft. The chieftain of the free men (nrpa) should be always alert and take steps to counter them. (222) It would appear that the editors of Manusmrti would depend more on these officials than on the kings and the elite to wipe out these tendencies from among the commonalty and to stop these vices of the ruling elite from percolating to the commonalty.

The men who resorted to gambling and duel, were mainly from among those who were not under the supervision of their clans and economic organizations.These free men (naras, nrs) were to be checked by the officials in charge of their conduct.[It is not sound to translate the term, nrpa, as king, raja.] The people (the social world, loka) of the plains (tal), that is, agriculturists and pastoral people called transfer of ownership (kriyata) of inanimate things (aprani) by this method as (equivalent to) gambling (dyutam). If it was a transfer of ownership of animate beings (prani) it was known as loss of equality of status (samahvya). (223) [Samahvya implied more than betting. Prani covered not only animals and birds but also men, especially those at the bare subsistence level and who could not stand on their own legs.]The king was asked to award corporal punishment to those who were engaged in these vices or induced others to be engaged in them. The punishment would be on par with that meted out to Shudras who assumed the guise of Brahmans (dvijas). (224)

What the organized society considered as deviant behaviour, as deviating from the normative methods of acquisition of and parting with property was to be penalized by the state and its officials. The free men, naras,who had parted company with their families and clans, tended to exhibit such deviant conduct and discordant notes. Thenrpas, local officials in charge of these free men, were required to take measures to prevent this trend.The king as the head of the state was required to reprimand the deviants.Social laws approved what the organized society opined to be the normative behaviour.

The king was directed to banish from his capital (pura), cheats (including these gamblers), entertainers (dancers and singers, kusilavas), cruel men, heretics (pashandas), men whose views and activities were dysfunctional (vikarma) to the society. (225) As they are expelled from the city, they move to the kings rural hinterland (rashtram) and pursue their activities from there. The evil is banished from the city only to get established in the rural areas. These thieves disguised and from their secret hideouts constantly through their prohibited activities harass the cultured and civilized people (bhadrika) the editors of Manusmrti point out. (226)Hence, it is not enough to extern these undesirable elements from the metropolis. [It is necessary to distinguish correctly between the administration of the city (pura) and that of the rural hinterland (rashtram). It is imprecise to translate the latter as kingdom or nation or realm.]

In earlier schemes (kalpas) (of punishment), gambling (dyutam) was seen to be the most important cause of enmity (vairam), the editors of Manusmrti point out. A worldly-wise person (buddhiman) should not resort to it even for laughter (hasya), they advise. (227)If any free man (nara) (who is not under the social control exercised by his family and clan) takes recourse to dice and gambling, secretly or openly, the official (nrpa) in charge of the conduct of such free men shall award one from the different alternative grades (vikalpa) of punishment (danda), according to his discretion. (228)

It was not adequate to direct him to take measures to counter the tendency, to resort to dice and duel (with betting). The rural official in charge of free men had to be given by the state, powers to award punishment to the deviants and to use his discretion in this matter. The King and the officials at the centre were expected not to interfere in the exercise of these powers by the rural official. This step was necessary as the scum expelled from the city was vitiating the peaceful and honest life of the people of the rural areas.

Social Offences and Nrpati as Magistrate (9-229 to 250)

All the four classes of the society were seen to fall victim to this tendency to resort to gambling for earning wealth and livelihood, abandoning the prescribed vocations. If those born to Kshatriya, Vaisya and Shudra women were unable to pay the fine imposed, they would be sent to do work that would be very harsh and painful to their bodies. They were to be sentenced to hard labour and would not be free to refrain from it (anrnya). The Vipras, free scholars, were required to pay the fine in instalments. Manusmrti was first drafted when the commonalty was referred to as Vis. It included both owners of property and workers who did not have personal property. The latter were constituted separately as Shudras. The rest of the commonalty was then not yet known as Vaisyas. The soldiers, policemen and officials were known as Kshatriyas. Deviants from all these three classes, Kshatriyas, Vaisyas and Shudras, could be sentenced to hard labour if they had lost their wealth in gambling and could not pay the stipulated fine.

The Vipras were free scholars who taught others without treating teaching as a means of livelihood and who were not attached, to the residential schools or subordinate to their discipline. They were equivalent to the free men, naras, who were not bound by the discipline of the families and clans.TheBrahmans, intellectuals, who were priests or teachers, were not to be given corporal punishment or sentenced to do physical work. They could be punished only by their own councils.But the Vipras though they were part of the class of Brahmans could be punished by the civil courts.They could however not be awarded physical labour as punishment. They did earn by teaching but their earnings were meagre. Hence they were permitted to pay the fine in instalments.The fine was the same to whichever class the delinquent belonged. (229) [It is not sound to interpret that the Kshatriyas, Vaisyas and Shudras could be sentenced to labour if they failed to return the debts and that the Brahmans could be only fined. The context is the offence of gambling.]

If the delinquents were housewives (stri) or minors (boys) or the aged or the poor or sick, the local official in charge of free men (nrpa) could impose corporal punishment as they had no personal earnings to pay fine and as they could not be sent to perform hard labour (in quarries). Whips, canes, ropes etc. might be used for such corporal punishment. (230)The nrpa had magisterial powers.There were other officials appointed to administer public affairs including the property of those who had lost their wealth in gambling.

Some of these officials were fired by the intent to grab this property and that would hamper the business of these delinquents who had been sent to the quarries to do hard work.These officials were caretakers. If out of greed they misused their positions, thenrpashould deprive them of that property. (231) [What was lost in gambling could not be taken over by the winner. Both the gamblers were punished and sentenced to hard labour. These officials looked after their business during their absence. The interpretation that niyukta referred to non-officials who meddled in judicial affairs is not sound.]

The magistrate was empowered to sentence to death those who made invalid (akrta) the secret (koota) royal edicts (sasana) and corrupted (dushaka) the officials belonging to the (seven) constituents (prakrti) of the state. [It is not sound to interpret that death sentence was to be awarded to those who sowed disaffection among the people (prakrti).] This verse (232) continues the note on the misuse of power by the caretakers. Death sentence was imposed on those who killed women, children and Brahmans.Similarly those who served others (that is, were not loyal to the king) could be sentenced to death.The magistrate had to note that the extreme punishment could be awarded only in certain cases. Duels often resulted in killing of opponents. But such killing was not liable to be awarded death sentence. Death sentencewas awarded only against the enemies of the state and the killers of the weak and helpless.

The magistrate who had his jurisdiction and powers defined and determined(though he was free to decide the quantum of punishment)was not free to reopen cases that had been settled(by earlier or other magistrates). He could not undo what his predecessor had done.He had to accept it as lawfully done and not annul it. (233) It is unsound to assume that all cases were decided only by the king. Kings were rarely judges.Most courts in the rural areas were presided over by chieftains who had restricted jurisdiction and well-defined powers and duties. They could not interpret socio-economic laws.They had to only implement them.They had to depend on precedents and could not give any verdict that was in conflict with the settled practices.

The magistrates could continue unfinished cases from where they were left uncompleted and had to order the implementation of the judgment already given. They could scrutinize the decisions given by amatyas(the officials who had only executive powers) or by those officials who proclaimed them (pradvivaka).The directives given by these officials who were not judges could be corrected personally by the magistrate in his capacity asnrpati. He could fine the erring official one thousand panas.(234) [Amatyas were not all ministers. Most of them were heads of sections of the bureaus. Senior amatyas were eligible to be appointed as ministers, mantris. The pradvivakas were court readers. They were not judges.]

Nrpatiwas not the king (rajan) who had appellate powers. The magistrate who was empowered to prevent crimes and to punish the criminals among the free men (naras) was known as nrpati. Later editors of Manusmrti and commentators went off the mark when they equated this official with the king himself. Most of these magistrates who ranked higher than the executives had jurisdiction only over the rural areas. They could exercise control only over those who were beyond the pale of the clans, families and organized communities.These bodies exercised adequate social control so that there was least deviant behaviour within their folds.

This aspect eluded the attention and grasp of the western Indologists who edited the smrtis for use by the civil and criminal courts established by the British rulers of India. These rulers and their courts depended heavily on the edition of Manusmrti prepared by William Jones. Subsequent editions too did not vary substantially from this one that was prepared as a manual and law-book applicable to all Hindus. These were prepared for use by the 19th century courts and did not and could not project the early post-Vedic age to which the original version of Manusmrti belonged. The reader has to bear in mind this aspect of the doctored version that we are examining here. It had no religious sanctity.

The slayer of a Brahmana, the drunkard, the robber and the violator of the teachers bed (one who had intercourse with his teachers wife) were ordinarily free men (naras) and their crimes were heinous. (235) [The term guru was used to refer to the teacher as well as to ones father.] This verse is not to be so interpreted as to imply that killing other men was not held to be a crime. The magistrate was empowered to pronounce death sentence for killing women, children and Brahmans. The inclusion of drunkards and robbers in this list must have been caused by despair at the total collapse of law and order.

When State ceased to exist, social laws had to become tough and vest the local chieftains with extraordinary powers to ensure the safety of the Brahmans and the teachers and their wives and property from the men who could not be chastened by their families. But these chieftains who had been magistrates were unable to function effectively. The four offences mentioned above could be excused if the offender performed penance, the next verse(236)says. It would be not wrong to hence hold that the term,Brahmahamust not have meant slayer of a Brahman. It meant dishonouring the Vedas or Brahma by abusing the expert in Atharvaveda who presided over the bench.Similarly the expression, gurutalpaga meant only violating the sanctity of the seat of the teacher by a student or by any commoner.

What were social and moral offences could be expiated by penance.Socio-religious law (dharma) prescribed for those who did not repent, penalty (danda) of corporal punishment with fine.This punishment might have been awarded by the teacher or by the head of the family. There is no indication that the king was called upon to punish those who did not perform penance. The corporal punishment might not have been necessarily branding. The next verse stipulates the type of branding and warns that the offender would have to suffer permanent and public humiliation if he did not sincerely repent and perform the prescribed penance. (237) This verse only indicates the despair of the social leaders who had no state to look to for support. They could only cast these offenders out of social communication. Excluded from all fellowship at meals and all sacrifices and all schools and abject and excluded from all socio-religious activities let them wander over the earth (prthvi). (238)

Society could only boycott them, deny the offenders the company of the good people.It could not punish them or expel them to the forests and mountains. The desperate society threatened to brand them and allow them to wander about, a lesson to others. Some texts give the impression that the guilty would be excluded from matrimonial alliances too. It is likely that this threat of social boycott was extended only to the Brahman and other students who had turned delinquents.Such persons who have been branded must be given up (tyaga) by their brothers and their brothers-in-law. They are not eligible to be shown pity or respect, according to the discipline (anusasanam) proposed by Manu Svayambhuva). (239)This verse indicates that the offenders might be even from the householders (grhasthas) who are already married. Their relatives are to abide by the social discipline prescribed by Manusmrti.

The guilty among the forward classes (varnas) who perform expiatory penance as prescribed shall not be branded on the forehead by the king. The state was not entitled to exercise its own measures of social discipline.It was however free to make the offenders pay the highest amercement(which was always assessed in terms of monetary value though it might be labour extracted during imprisonment). What the social laws treated as deviance liable to be ostracized was treated by the state as violation of economic laws and as challenge to the rights and authority of the state.The two punishments could go together. In the case of the lower classes, expulsion from the communal affairs was not feasible or useful. They feared branding. The state could extend this threat to make them fall in line.They had no money to pay the fine. (240) As the Brahmans too were poor the king was advised to award the offender who was a Brahman, only the middle level of amercement.Instead of imposing fine, he could be banished from the country (rashtram) and allowed to take with him his liquid assets.(241)Banishment was more hurting to his prestige.

Members of the other classes (especially Kshatriyas and Vaisyas)who had committed the serious offences enumerated earlier would be deprived of their entire property, if they had not committed them deliberately. If these offences were committed deliberately they would lose their property and would also be banished. (242) [It is not likely that they were awarded death sentence. Drinking and stealing were not so serious offences as to justify imposing death sentence. The other two offences too did not involve murder and rape. Such a distortion of the text is not to be entertained.]

There was discrimination on the basis of varna, socio-economic class, but it was not a skewed or a totally unwarranted one.A holistic approach to the issue of discrimination in punishment is to be taken.The Shudra offender was branded but he had no property that could be confiscated. He was not banished. The others were not branded. The guilty Brahman was banished but did not lose his property, which was however not much.The others who were not branded lost their property and were also liable to be banished. The state or the king alone could confiscate the property of an offender or banish him from his country. The local community could only boycott him.

But the state was not always there or the king always powerful enough to exercise his powers. He might expel the undesirable elements from his capital but these hid themselves in the rural hinterland, which was under the magistrate who too could not banish the offender. Confiscation of the property of the offender and his banishment from both the city and the rural areas could be effected only if the state was stable and its ruler powerful.

The nrpati, an official, who had magisterial jurisdiction over the free men, naras, was not entitled to confiscate the wealth of those persons, who were guilty of heinous crimes. This magistrate was expected to be a pious man,sadhu. He had no treasury or storehouse at his disposal to deposit it. He only appointed administrators for that property and watched that they did not misuse or grab it. If this official, out of greed, attaches it, he will be tainted by that guilt of the person whom he was expected to punish. (243) [Manusmrti was drafted when the state had not yet become fully organized. Civil administration manned by amatyas was not yet fully in place. The judiciary too was toothless though it had been given guidelines. a Most of the organized society was under the control of organized clans and communities. State control was then minimal, as extensive state control was impractical.]

Indra, Agni and Varuna were officials of the Vedic polity. Indra was the designation of the head of the Sabha, the house of the nobles and Agni that of the Samiti, the council of scholars. Agni was also in charge of the peoples court. Indra controlled the treasury. Varuna was the magistrate who had police powers and could take into custody those who were declared to be civil debtors. These civil debtors and other criminals were sent to the galleys or islands under his jurisdiction. Manusmrti was drafted when the Vedic polity had not yet vanished. Varuna exercised coercive power, danda.The magistrate, nrpati, was asked to hand over the property of the offender to this official of the waters (apa).

Wealth, which had no owner, was to be thrown into the river or the sea.Or it had to be handed over to a virtuous and learnedBrahman. The latter was a scholar in Vedas (Sruti), especially in Atharvaveda (Brahma) and was a jurist and guardian of the socio-political constitution. Thenrpaticould hand over the property taken away from the offender to either the ombudsman, Varunaor to the jurist, Brahma, a member of the constitutional court. Both these were independent of and superior to the king.(244) Medieval commentators and most of the later Smrtis had lost sight of the Vedic social polity. The editors of Manusmrti were however too close to neglect it or be unaware of it. The King and the civil administrator could not take over the unclaimed wealth.

The later Vedic social polity was marked by the king, rajan, being elected by a college of powerful chieftains, rajanyas. Often this struggle for power witnessed violence and civil war while the house of nobles and the council of scholars stood helpless. In the absence of a head of the state, Varuna held power as ombudsman and regent. This official wielded danda, the rod that signified coercive power.

Even the king elected by this college and subsequently acknowledged by the nobles and the scholars had to acknowledge the superiority ofVarunawho had a status equal to a charismatic chieftain (isa) of the social periphery. [Isa is not to be interpreted as god.] The king exercised coercive power delegated to him by Varuna. The king held the sceptre in his hands but it was placed in his hands after the official,Varuna,pronounced that he had been duly elected to that post. Varuna, the ombudsman and regent vested sovereignty in the king.

The jurisdiction of the king was limited. So too that of Varuna who belonged to the peripheral river economy was limited.The settled population, loka, of the plains was organized enough to be able to discipline its members without the aid of the state. The nrpati, magistrate and chief of the free men, naras, supervised the conduct of the latter and punished the deviant among them. Thenrpaticould not attach the property of any member of the commonalty or banish him from his territory. This power was vested only withVarunawho had the right to take in bondage any debtor including the ones who had not paid the fine imposed by the magistrate and also attach the property. There were men and women who wandered from place to place and were civilized but had no property. These constituted a social universe, jagat. The king could not banish them, as he had no jurisdiction over these non-residents. They were not subordinate toVarunaeither.

They were however required to listen to the counsel of and to abide by the instructions given by theBrahmana, the upholder of theAtharvanconstitution, Brahma. The Brahmana had mastered the Vedas and was acknowledged as superior to Varuna and all other officials. He was the isa of all. [It is not to be interpreted that a member of the Brahmanavarna is to be worshipped as a god.] (245) It is unsound to interpret that unclaimed or confiscated property should be gifted to the Brahmans and not retained by the king. TheBrahman, as a jurist, was expected to hold all such property as trustee.

Many kings were unhappy with the constitutional arrangement that deprived them of the right to hold confiscated property and which subordinated the king to Varuna and to the interpreters of the constitution which function was performed by the Brahman jurists.The king should not seek to receive income from such property. Not all property is theft. Most property is formed from honest and lawful effort. The king may seek to receive income from such property in the form of tribute or tax. The editors of Manusmrti console them with the advice that they should not long for the property of the sinners. It was property formed from theft, a serious sin.

Where such a ruler is present, men(manavas, who adhere to the politico-economic constitution of Pracetas) are born at the appropriate time and live for a long time.In other words, men who are conscious of their rights and duties accept the citizenship of his country, as they are confident that the king who is not greedy will not confiscate their honestly earned wealth. The manavas, whether they were intellectuals or warriors or administrators or traders or workers, were free to move to any country of their choice and pursue their vocation or profession there. These cadres (manavas) cannot be coerced to accept the authority of a despot nor will they emigrate from the country of a good king. For, it is better to be free and without property than to be accused of being in possession of property that is deemed to be stolen property. (246) The translation of this verse as: In a country where the king avoids the income of wealth from sinners, men are born in time to be long-lived is not precise and does not convey the deep intent.

The next verse adds that the crops of the husbandmen grow as they are sown and that children do not die and that no misshapen child is born. This note was intended to warn the greedy king against failure of crops, infant mortality and birth of handicapped children. This verse (247) must have been a later interpolation. The magistrate,nrpa, was asked to hand over the confiscated property to theBrahmanawho would hold it as a trustee.TheBrahmanawas engaged in convincing the men who were moving about to get settled in the rural areas and assured them that their property if honestly earned would be safe from confiscation by the king.

But these Brahmans, jurists, who were trustees of confiscated property, were themselves not safe. If any person not belonging to any of the four classes,varnas(that is, who has been expelled from or not admitted to any of them and who is not a citizen of the world and is bound by the laws of their countries)harasses him out of lust(desire for that property),the official, magistrate, shall strike him with all terror-striking forms of torture(short of execution as death sentence). (248) [It is not sound to translate the term, avarnaja as base-born or as referring to Shudra. It indicates a person who is born in a community or clan that is not eligible to be admitted to any of the four socio-economic classes, varnas.]

Thenrpaswho were pious men appointed to tame the free men and punish the delinquents among them often hesitated to award corporal punishment.The editors of Manusmrti point out that the killing (vadha) of one who is not to be killed is as great a guilt as acquitting one who deserves to be killed. Both these lapses are against social laws (dharma) that the pious magistrate is required to uphold and implement. When he implements disciplinary measures (viniya) he would be conforming to social laws (dharma). (249) These editors were addressing not the rajan, who was a greedy, cruel and aggressive ruler but the gentle and pious nrpa. Jhas comment, The teaching regarding punishments is for the purpose of preventing crime is irrelevant. Dharmasastra has not banned death sentence. Of course, it has not treated it as revenge. To the extent this section deals with property it is covered by civil law, vyavahara. It may be treated as part of the section on civil law and justice. (250)

CHAPTER TEN

LAW AND ORDER AND SECURITY OF THE STATE

The King and the Removal of Thorns (9-251 to 293)

The ruler of a predominantly agricultural country (mahi) whoperforms his work in accordance with the social laws (dharma) may seek to acquire (populated) land (desa) not already acquired and administer (paripala) it. (251)The editors of Manusmrti do not ban acquisition of new populated lands for purposes of administration. This is not greed.Mahipatihas to be distinguished fromrajan. He is essentially an agriculturist and landlord and is more an administrator than a warrior bent on conquest of lands. He has his base in the agricultural land but is not a quazi-feudal chieftain controlling the rural hinterland (rashtram) from his fortified capital (durga).

[It is necessary to delineate the distinctions among the terms, desa, rashtra, rajyam, bhumi and prthvi and not treat them as all referring to kingdom or realm, rajyam. The mahipati was known also as bhoja (son of the soil, native agriculturist chieftain).] This chieftain could become a king only if he had a fortified capital, durga. Having duly settled the people of his country and having built forts according to the codes (sastra) he should use his utmost energy for the removal of thorns. (252) The term thorn is applied to robbers and others who are a source of suffering to the people.

Nrpatiwas a pious official who oversaw the activities of the free men (naras) who were not under the control of clans or communities. He had magisterial powers and respected and implemented the social laws to the best of his ability. Mahipati was essentially a landlord who could acquire more populated lands and get recognized as their administrator. He was not annexing them as his personal property.

As he tries to become a ruler with political power, he constructs forts and regulates the conduct of the people in his land. He controls its wealth and army and assumes the title and rank of Indra. But only the free men, naras, are under his jurisdiction, and the already settled clans (kulas) and communities (jatis) are not.He bestows his newly acquired lands on thesenarasand utilizes their services for various purposes including defence of his territory and conquest, in his capacity asnarendra.

He protects (raksha) those who follow the vocations of Aryas(that is, of Vaisyas, owners of lands and cattle and traders) and removes the thorns (the elements that cause trouble to these vocational groups who are entitled to personal property). He is solely intent on regulating the lives of his subjects (prajapalanam). Thereby he rises in status to the level of the nobles, the members of the other (para) social stratum. (253)

Mahendra was a noble (deva) and as the head of the house of nobles, he controlled the treasury and also the army.Narendra was but a commoner who led the free men. [The interpretation that the well-behaved were referred to as Aryas is based on the explanation given by medieval commentators like Medhatithi.] Unlike, the nrpati, narendra was able to ensure that his directives were obeyed. He could eliminate the antisocial elements with a strong hand.

It is necessary to recognize that Manusmrti was drafted soon after the agriculturist ruler, Prthu, had come to power. The constitution adopted by Prthu became a model for other rulers of the agro-pastoral tracts,prthvi.Such a ruler was known as Parthiva. If such a ruler does not restrain the robbers and yet extorts tributes(bali)or taxes from others his rural areas(rashtra) he would stagger and fall from his stratum of nobility. (254) [It is necessary that the term, rashtra is not translated, as nation or as country or as state.] Prthus predecessor, Vena, was burnt to death by his enraged subjects, especially the agriculturists. Bandits ruled the roost until Prthu was elected the ruler.

The new constitution prescribed the rights and duties of the king. Only one-sixth of the produce could be taken as tax, it was stipulated. The agriculturists were not to be coerced to pay taxes. If a ruler failed to protect them against the robbers and yet took taxes, his position would be endangered. The Prthu constitution had replaced the system of bali, by kara.Baliwas surrender of whatever share of the produce as demanded by the king and his men. It was a feudal practice.Tax or kara was fixed as one sixth of the produce or one tenth of the traded goods or of wages.Manusmrti was drafted at a time when this crucial transition frombalitokaratook place under the aegis of the seventh Manu, Vaivasvata. Medieval commentators had lost sight of this aspect of social dynamics.

If the rashtram, rural hinterland, resting on strength of his arms, on his prowess, is secure, it always flourishes like a well-watered tree. (255)The editors of Manusmrti call upon the people to welcome the formation of a strong state. Venas regime had made the people fear the strong despot and opt for a stateless society instead. Manusmrti advises them to notice the advantages of having a powerful ruler who would protect them against robbers.The robbers who take away the property of others are of two types, open and not open (prakasa and aprakasa).Themahipati,ruler of the agricultural lands is advised to discover them through his team of mobile or travelling spies (charachakshu). (256)

The editors of Manusmrti deal with retailers who deal in different commodities and sell them for cash, panya. These transactions cannot be taken to the court, which deals only with economic disputes, vyavahara. For these retailers, cheating is an additional source of livelihood and they do not conceal it.The robbers, burglars and others who operate from their hideouts in the forests are not cheats. Their activities and movements may be questioned. (257) These two are not the only thorns to be removed. Those who take bribes (utkochaka, crooks), impostors (aupadhika), cheats (vanchaka), gamesters (kitava), tellersof auspicious news and fortune-tellersare also included in the list of thorns to be weeded out. (258) {None can foretell the future. The society is not to be guided by these foretellers.}

High officials (mahamatra) and physicians, who violate the code of conduct, exhibitors of sculpture (those who present the unreal as the real) and clever harlots too are included in the list of thorns. (259) The artists who used art to create illusions through life-like figures were condemned as thorns to be weeded out. [The editors of Manusmrti would build a society where every one was rational and none would be carried away by pretenders and none would allow himself to be deceived by even the respected persons. It is unsound to proceed under the assumption that Manusmrti is a religious code and that religion thrives on superstition. Dharmasastra covered all aspects of social life and expected all to accept as desirable moral laws what were within the ambit of reason rather than have blind faith in what was claimed to be the voice of the invisible god.]

These and others of this kind show themselves openly as thorns (kantaka) in the body politic, in the social world (loka). Also there were persons who were not Aryas (Vaisyas) who were moving about concealed (niguda) in the guise of Aryas (Vaisyas, mainly traders). (260) It is not necessary to translate the term, Aryas as gentlemen to avoid the interpretation that there was race discrimination against non-Aryas. Aryas were not a race. Only the landlords and traders, especially the latter, were referred to in ancient Indian works asAryas. Incidentally, they were educated and cultured and others were warned against dressing themselves like these persons who belonged to the upper middle classes. The common people should be protected from the antisocial elements, which moved about disguised as landlords and traders.

Having discovered them through trustworthy and well-behaved persons who disguised themselves as persons following the same occupations as the antisocial persons pretended to follow and by means of mobile teams of spies, the official shall incite them to commit offences and take them into custody. (261) Moving about in the guise of traders (Aryas) is not a crime. But this leads to suspicion.

Crime has to be actually committed before the offender may be arrested.Then it is proclaimed and the criminals are individually charge-sheeted showing the offence committed by each. Declaring an entire group or community as a criminal tribe was not permitted. e local official in charge of detection of crime and indicting the criminals had to forward the proclamation containing the charges to the king (rajan) who would punish the guilty according to their crimes and their capacity (to pay fines). (262)The local official, mahipati or nrpati or even parthiva was not empowered to punish these secret criminals who disguised themselves as respectable traders.

The crimes of the evil-minded thieves who are secretly prowling about cannot be reduced without punishment (danda).The editors of Manusmrti endorse the stand of Dandaniti on the power needed by the king on this issue of crime and punishment.Repentance and counselling do not work in all cases. (263)

Assembly-halls, water-kiosks, restaurants, taverns, brothels, cross-roads, asvatta trees under which people met, conferences (samaja), play-houses, old gardens, forests, workshops, vacant residences, old and new groves and similar places are to be guarded by companies of guards both stationary and mobile. This was the duty of thenrpawho was in charge of the country (desa) other than the fortified capital.He had to use the mobile groups of spies also for keeping out the robbers.(264 to 266)This official was advised to use former brigands to detect these criminals by moving among them for destroying them. A thorn is to be removed by another (but sterilized) thorn. These brigands knew the various methods used by the criminals. (267).

Manusmrti adopts a pragmatic approach and does not deliberate on the ethics behind these steps taken to protect the body politic from criminals.The ex-brigands may entice and bring the brigands to feasts and sermons and for introduction to respectedBrahmansand for training in feats of valour.On these occasions the suspected criminals were expected to come in contact with the officers.(268)

The nrpa, the official with magisterial powers over the free men in the countryside, was vested with the power to crush the suspected bandits who did not come to the places mentioned (for surrender). He could destroy also their friends, brothers and brothers-in-law. (269)

The nrpa who followed the social code(dharma)was not permitted to put to death any thief unless the latter was caught with stolen goods and with the implements used for burglary. He should not spare any one who was caught with these. (270) It is implied that it was not necessary to first indict them, proclaim their offences and then send these to the king for his verdict in each case.

It was a local affair pertaining to law and order and not a socio-economic offence to be dealt with by the king and high authorities of the state.This official was empowered to punish all those in the village who supplied food and other goods for the thieves. (271)Those who were appointed to guard (raksha) the rural hinterland (rashtra) and the feudal chiefs (samanta) who had been asked to come for help were liable to be punished if they stood neutral while the official was trying to weed out the criminals. Their neutrality would be treated as abetting crime and they would be given punishment on par with that given to the criminals. (272) The socio-political structure of those times has to be read along with demography. Most feudal chieftains hesitated to come to the aid of the organized state in the war against brigands.

Even some of those who lived by propagating the contents and intents of social and moral codes (dharma) and executing their directions at times deviated from their duties. (Commentators have held that this was a reference to the Brahmans and other priests.) They too could be punished with fine for violating social laws (dharma). Thenrpa, local magistrate was acting under rules prescribed by the social code (dharma) and not under any charter given by the king stationed in the capital or fort.Those socio-religious leaders who protected the brigands actively or by remaining neutral were preventing him from discharging his duty to the society and were hence liable to be punished. (273)It is unsound to interpret the term, nrpa as king and conclude that this verse subordinated the clergy to the state. Was this verse interpolated by 19th century Indologists?

The nrpa was a respected pious member of the local community and he exercised powers that were vested in him by the social code, Dharmasastra.He expected and needed support from the guards appointed by the king and the feudal chieftains and the members of the community who stood by this code.Those who do not hasten to assist to the best of their ability whenever the village was attacked or a facility (hita) (like a dike) was damaged or a highway robbery committed were to be banished with their goods. Every member of the village-community was expected to contribute to its peaceful life and security. If one did not do so, he had no right to stay in that village. (274)Thenrparegulated and looked after the lives of the members of the local community.

At the level of the state, the king (raja) was the highest authority. He punished those who robbed the treasury (kosa) and who worked against his directions.He punished those who conspired with his enemies.He could award them capital punishment for these politico-economic offences. (275)But the crimes committed in the rural areas were not as unsettling to the state as these were. Capital punishment for treason could not be objected to. Rural crimes were mostly minor ones though they affected the lives of the honest villagers adversely. The nrpa was empowered to cut off the hands of the night-burglars or impale them on pointed stakes.

On the first conviction, the fingers of the pickpocket were cut off; on the second, a hand and a foot; on the third, he shall be put to death. Such maiming might not have been absent. But it is not apt to treat this as the norm. The threat was adequate to prevent spread of criminality. It must have been rarely carried out in local communities, which treated social ostracism and banishment as adequate punishment. The magistrate was not empowered to kill any criminal. He might give corporal punishment or might impose fine or confiscate property in some cases(276,277).The magistrate had the duty and the right to punish those who provided fuel, food, arms and lodging to thieves and helped them to escape. They would be punished like thieves.(278)

Some villagers might intentionally or unintentionally break the walls of the tank and cause damage to crops and property. Such offenders, it was threatened, would be drowned in the tank as an exemplary punishment. If an offender offered to reconstruct the wall, he might be left off with the highest amercement (fine). (279)Those who broke into a storehouse or armoury or abode of adevataor stole elephants, horses and chariots were liable to be killed without hesitation. These amounted to a threat to the security of the state. Obviously officials or magistrates appointed to guard state property would mete out such punishment. Devatas, plutocrats and technocrats, were in charge of the administration of the forest areas where industries and garrisons were located. (It is not sound to treat their abodes as temples. The term, devata, came to be used only far later to indicate god.) (280)

If one took away water from an old tank or cut off supply of water (to other fields) from it, he was liable to pay a minimum fine. It was a minor socio-economic offence as the old tanks belonged to the entire village community and no one should seek exclusive use of them.(281) If one threw filth on the public road (except in dire necessity) he was fined two karshapanas and had to clean the road immediately. It is a civic duty of all to keep the roads clean.(282) But one in urgent necessity, or an aged person or child or a pregnant woman might be only reprimanded and not fined. The offender should however clean the road. (283)All dishonest physicians were liable to be punished. The veterinarians were given the lowest punishment and those who treated human beings were given middle level of amercement. (284) One who destroyed a bridge or a flag or a pole or an image (pratima) had to repair the whole. He had to also pay a fine of five hundred panas(285).The officials of the local bodies imposed these punishments.

Foradulterating unadulterated commodities or for tampering with gems, the first amercement was imposed. This was an economic offence at the level of retailers. For manipulating scales, weights and measures, and treating unequal as equal, the first or middle punishment was to be given. The former was manipulating the value of the goods and deceiving the customers and it was an economic offence. The latter was a social offence and it involved a free man, nara,who was under the disciplinary jurisdiction of the nrpati.He did not respect distinctions based on social status and treated all persons as equal. He was hence given an exemplary punishment with the middle amercement. (286,287)

The officials of the interior were required to construct prisons (without walls) near the state highway so that the suffering and maimed offenders might be seen (by the passersby). This sight would deter others. Manusmrti does not favour construction of prisons and labour camps in remote areas.Punishment was meant to be a deterrent to all likely offenders and not to be revenge by the state in privacy away from public sight. (288)

The prisoner who broke the wall or dug tunnel or broke the gate to escape was to be immediately banished from the country.Imprisonment was intended to make the guilty repent and get reformed.It was felt inadvisable to keep in fortified prison rebels who were bent on escaping. It was better that they were expelled from the country.(289) [The interpretation that the penalty of banishment was to be inflicted only in the case of damages done to walls, ditches etc. of a fort or town, is not tenable. The intent was not to convert the town or fort as a prison for all citizens but to recommend for criminals open prisons to fortified ones.]

For all incantations intended to destroy lives, for magic rites with roots practised by one against another person and for various kinds of sorcery a fine of two hundred panas was to be imposed.(290)The editors of Manusmrti did not believe in superstition but there were sorcerers who threatened the innocent and simple people.They had to be deterred. Whether these rites were sanctioned by the Vedas or by other writings they were all banned by these editors. Chanting of secret formulae for ones personal gains without affecting the interests of others was not covered by this injunction. He who sells as seed what is not marked as seed-corn or picks out the seed sown or transgresses the boundaries of the fields of others was liable to suffer mutilation of their organs. (291) Rural life was vexed by these offences and they had to be put down with a heavy hand.

The worst of all thorns, criminals, was the goldsmith who behaved dishonestly. Parthiva, the administrator of the rural areas was asked to cut him to pieces with razors. The deceived were mainly the elite. The agriculturist king (parthiva) had to protect the interests of the elite too. (292)For stealing agricultural implements, arms and medicines, the king (raja) shall determine the quantum of punishment after taking into consideration the time and uses.The king who was stationed in the city should not leave the villagers totally to the care of the local administration. He had to ensure that their basic needs were guarded against thieves who were stationed outside the rural area, that is, in towns or in forests. Only the king had the reach to them. He had to act for the villagers too.(293) This aspect had been lost sight of by the medieval commentators and also by most modern critics of Manusmrti. We can trace in this section a rational and balanced approach to the protection of the economic interests of the agriculturists.